RIAA Really Planning To Join Righthaven Fight

from the incredible dept

We'd noted that the RIAA was thinking about joining the Righthaven appeal in the Hoehn case, specifically to argue against the fair use finding (the RIAA: not a fan of fair use rulings that say fair use can exist on the use of full works). As you can see embedded below, a lawyer representing the RIAA and the Association of American Publishers (AAP) is planning to try to join the case, arguing that the issue of standing (i.e., the fact that Righthaven doesn't have the copyrights in question) should preclude the court from even considering the fair use question. The letter below is from Hoehn's lawyer, Marc Randazza, explaining why this is not a wise move on the part of the RIAA and AAP. Here's a snippet:

If you have actually managed to convince your clients that it is a good idea for them to spend tens thousands of dollars (or more) in this case for the sole eventual purpose of merely costing Mr. Hoehn money, you can rest assured that it will be a public relations negative for them, in no small part due to Righthavenís poor handling of this case, along with hundreds of others, from its inception to present. I strongly suggest that you consider recommending a different "make-work" project for your clients. I understand that in this day and age of biglaw layoffs, it is a constant battle to make sure that your existence is justified on the firmís billing ledgers. This is the wrong case with which to round out your sheet. I can assure you of that. Your clients will waste money and all the money will buy them is the opportunity to look like idiots.

Once again, the RIAA is pretty braindead when it comes to any sense of what the PR impact of its actions would be, so I doubt it'll change its mind here. The standard thinking is just "expanding fair use is bad, we must fight it at all costs."

"Righthavenís poor handling of this case" SHOULD prevent

any lasting precedent from it. Otherwise it's embracing the notion that third-party stupidity can set precedent.

"the fact that Righthaven doesn't have the copyrights in question) should preclude the court from even considering the fair use question."

In the (horribly tangled) circumstances, RIAA may be making a mistake, sure, lawsuits are always rolling dice, but seems a good hook to throw out the precedent, and since comports with their overall aims, inevitable. -- And of course lawyers are always blustering, so discount Randazza.

Good grief. The judge ruled that the court didn't have subject matter jurisdiction but then reached the merits of the fair use defense anyway. And the fair use analysis was completely botched. Filing an amicus brief to point out these obvious errors doesn't mean they will "take up arms for Righthaven."

Re: Re:

Typically the entire use of the work in a non-transformative way isn't fair use. It wasn't transformative for Hoehn to copy and post the article for others to comment on when the original was posted as an article for others to comment on. That's a classic market substitution that copyright law protects. The judge also said that this copying wasn't for gain. That's not right either since Hoehn probably gained more page views to his website. And since the judge didn't allow discovery to commence, Righthaven couldn't really address the merits of Hoehn's defense with facts. There was other stuff I thought the judge got wrong too, but it's been a while since I've read the opinion and I don't recall the rest. But those three things alone are huge defects.

You can certainly cook up some scenario where wholesale copying is fair use, but this cut-n-paste job by the defendant isn't one of them. Don't get me wrong. I would have no problem with this being fair use--in fact I think fair use rights should be broader. But as far as applying the law as it currently exists to these facts goes, the district court did not do a good job. I suspect the Ninth Circuit would reverse the fair use ruling if they were to actually reach it.

Not that I disagree with Randazza

But out-and-out accusing them of generating make work is probably not going to be effective.

Now they'll have to demonstrate that it's not make work by over stating the necessity of doing it. And the RIAA, champions of causes both lost and unpopular, lack the foresight to see where this will end, or perhaps don't care and merely themselves wish to appear busy.

Again, don't disagree with Mr. Randazza, but I suspect this will not achieve what he wants.

Re: Re: Not that I disagree with Randazza

So...is Randazza not allowed to give copies of letters he's written to whomever he likes? If it was a letter he received, and it was marked confidential or something, sure, you'd have a point, but in case you just don't get it...this is something that Randazza has WRITTEN. He can do whatever the hell he wants with it! Hell, he could have wiped his arse with the original and sent that off, and then give a clean copy to Mike.

Re: Re: Re: Not that I disagree with Randazza

He can write letters to whomever he wants. But my opinion is that writing this letter and sending it off in the first place, then editing the letter to create a silly updated draft that's obviously staged, and then sending that draft to Mike to publish on Techdirt is the definition of petulance. I'm not challenging his ability to do this. I'm questioning the wisdom of it. This seems more about Marc than it does about Marc's client, that's for sure. I think Marc just wanted a way to update the world on his dismantling of Righthaven. Good for him for vanquishing the troll and all that, but this strikes me as just silliness.

Re: Re: Re: Re: Not that I disagree with Randazza

Silliness and petulance it may be but he's also warning, in my reading, the RIAA's lawyers that, if necessary, he's going to continue on pro bono right to the end because he believes he has a valid ruling and that the appeal will fail on MERIT not on any letter he writes. A letter which, even should the interveners gain standing isn't evidence of fact in the case to be heard.

Warning shots across the bow are common enough in legal practices and this letter wouldn't have been written or made public unless it fell well within the bounds of both the case,laws and precedent in this situation.

It's also far better that he make it public rather than the RIAA because he gets to control the message this way in the public realm.

Re: Re: Re: Re: Re: Not that I disagree with Randazza

If the Ninth Circuit panel affirms the lack of standing ruling, they'll vacate the fair use ruling as moot. So the only way the panel will look at the merits of the fair use defense is if they first find that Righthaven has standing. Wouldn't that be something? Maybe Randazza is worried the amicus brief will argue the standing issue. That might explain why he's coming out with this staged Techdirt hit piece.

Re: Re: Re: Re: Re: Re: Not that I disagree with Randazza

Actually being an original letter to Randazza for notice that they are considering becoming neutral, and not partisan, amicus means that the original correspondence and any about it are by the definition of amicus, even more so to an appellate court on an issue of erring at law, very much part of the public interest and all matters should available to the wider public not just the court. There is also no privilege in these correspondences either, though the publishing of how much Righthaven had in account when seized is skirting ethical & privacy matters in my opinion.

Randazza has stated that they do not think that the RIAA should be granted amicus since they are in no way an unbiased party, by any stretch of the imagination. It is self evident they are trying to remove the fair use defence for their own reasons and are in no way amicus to the court (or case), other than 'friends to themselves'

I can understand why the RIAA (and even the MPAA) would want to be a part of this appeal since their is a suggestion of precedence on an IP matter, though from first glance they have no standing especially as a neutral party, otherwise organisations like EFA, Google, even Techdirt (at a long stretch) should be allowed to submit amicus briefs as well.

Re: Not that I disagree with Randazza

At this stage he doesn't have to demonstrate anything. He's simply making his case opposing their request for intervener status at the appeal stage and nothing more.

Under the circumstances I'd want my lawyer to demand costs, too. Particularly as he spends the previous paragraphs making the argument he'll present that they ought not to have it and then proposing a settlement by which is client won't oppose that. That doesn't mean someone else won't oppose it or that the judge(s) hearing the case won't grant it for all the reasons he outlines previously. It just means "fill you boots but you bear the cost of a lost cause not us" letter. Under the circumstances not all that uncommon, really.

Given that the case is highly visible once it gets to the appellate court, should it be allowed, he's also better off releasing it now than letting the RIAA control the timing and messaging around the letter. This way he controls the messaging.

Even if it does make Average Joe want to tear his hair out, something he seems to do a lot instead of studying law or whatever it is he's studying.

The RIAA is already a toxic acronym, why should they even care about their reputation at this point? The next generation of artists are already blazing a new trail around their tollbooths on the music industry expressway. In ten years, the RIAA, and the labels they represent, will be irelevant. They would be wiser to start investing the money they are spending on lawyers into 401Ks so their executives can retire to their private islands.

The important paragraph

The next to the last paragraph is the entire purpose of the letter. He offers that his client will stipulate to the appeal if the RIAA will pay the judgement (which was more or less all legal fees) for Righthaven. While I would hate to see the loss of the Fair Use ruling, it looks like Marc is trying to make sure he gets paid one way or the other.

Re: Re: The important paragraph

Re: The important paragraph

My reading is a bit different than yours in that I read it as he is telling the RIAA that his client won't pay for their application for intervener status, outlining his opposition to it, in law, and then saying "go for it, just buck up".

His legal reasoning seems good as it does reflect legal thinking, and annoyance with, wasting thier time being asked to do things they're not about to do or are not compelled in law to do. One of them is a grant of intervener status. The annoyance is spread through the English speaking world and we all share the same basis of English civil (written) and common (unwritten precedent) law as more and more people clog up the courts with silly things, like contesting something that's well and truly lost. So he's simply saying, go for it but here's the price for that. You pay the costs of that request and subsequent costs on your own.

Other than that he's also telling them that if needs must he is willing to carry this through pro bono and is more than willing to take it as far as it will go that way, so the RIAA is going to be on the hook for those costs, too, if it comes to that and good luck to them cause they're going to need it and more.

It's a confident letter from a confident lawyer and, I suspect, a confident client.

Re: Re: The important paragraph

I agree that he sounds like a confident lawyer. Still all of the "if you go far it you just waste your clients money" is followed by the offer of that says more or less "your client can get everything they want by simply paying the Righthaven Judgement". I don't take exception with him trying to get paid, but since the Righthaven judgement was almost entirely attorney fees, it will go to him and not his client.

whether to join as amicus

I think RIAA would be better off just steering clear of all the Righthaven cases and then asserting in later litigation that any statement the appellate court(s) made in those cases was dicta because of the finding that Righthaven lacked standing to sue in the first place. They don't have to join the instant case to make that argument and are probably better positioned to assert the dicta argument before another court at a later date. Righthaven is a very unsympathetic litigant and as much as that is not supposed to influence an appelate court when faced with an issue of law ... it certainly doesn't help.

RIAA

The RIAA threatened a small establishment in my very small town with a $25,000 punitive lawsuit if they didn't start handing over $1,200 every few months just because every now and then the establishment has hired local entertainment that sings a cover or two for a handful of patrons. This is totally mob like behavior which is protected by a corrupt political system. Time to occupy RIAA street... anybody have directions?